Opinion: Kagan -- A Victory for Equal Justice Under the Law

(May 10) -- Elena Kagan is, simply put, brilliant.

As the solicitor general of the United States, a former dean of Harvard Law School and a law clerk to legendary Supreme Court Justice Thurgood Marshall, Kagan has already held three of the most distinguished positions within the legal profession. For most lawyers, a seat on the U.S. Supreme Court is an unobtainable goal.

For Kagan, it seems like the logical next step.

Brilliance, however, is not enough to qualify even the most renowned attorney for a seat on the high court. Rather, Kagan's chief qualification for the bench is not her unquestioned intellect, but the contrast she offers to another equally talented jurist.

Like Kagan, Chief Justice John Roberts is one of the legal profession's leading lights. Himself a former Supreme Court clerk, Roberts rose to become one of corporate America's most skilled -- and most handsomely compensated -- litigators.

Yet for all his ability, Roberts has appeared incapable of neutrally applying the law to the powerful and the powerless alike. Instead, two themes seem to emerge from the chief justices' opinions: Powerful corporations enjoy sweeping immunity from the law; but ordinary workers, children, consumers and the elderly are on their own.

Consider the case of Diana Levine, a professional musician who lost her right hand, and her livelihood, after a drug was injected into her arm. Despite a jury verdict and two court decisions holding the drug's manufacturer responsible for Levine's injury, Roberts joined an opinion claiming that drug companies enjoy almost total immunity from state law. While Levine won her case before the court in 6-3 decision, Roberts apparently thought she could eat cake.

Compare this to the case of Don Blankenship, the wealthy coal baron best known for ignoring safety regulations until an explosion in one of his mines killed 29 miners last month. When Blankenship's company lost a court case, he spent $3 million to elect a justice to the state supreme court who he could count on to rule in his favor. That justice delivered exactly what Blankenship paid for.

When the plaintiff appealed the case to the U.S. Supreme Court, Roberts responded with a dissenting opinion arguing that bought-and-paid-for judges are under no obligation to recuse themselves from their sugar-daddies' cases. (The majority voted to reverse the state court's ruling, noting that Blankenship's political contributions had tainted case.)

The chief justice's views notwithstanding, a free society depends on judges who will faithfully apply the same law to all parties. It is simply unacceptable to apply one set of rules to Diana Levine and another, more favorable, set of rules to Don Blankenship.

Fortunately, Kagan's record suggests that she will be a very different justice than Roberts. As an adviser to President Bill Clinton, Kagan spearheaded legislation to prevent tobacco companies from marketing their products to children -- only to watch the court's conservatives apply an implausible reading of the law and hold tobacco companies immune from such regulation. So Kagan knows what it is like to see years of effort to protect the American people's heath and safety destroyed by a Supreme Court more concerned with protecting powerful interest groups than with upholding the law.

As a justice, however, Kagan would be just as wrong to be a liberal rubber stamp as the chief justice is wrong to be an agent of the rich and powerful. Thankfully, her record shows that she is fully capable of impartially applying the law even when she disagrees with the law she is applying.

While serving as dean of Harvard Law School, Kagan famously described the military's anti-gay "don't ask, don't tell" policy as "a moral injustice of the first order," even supporting litigation intended to undermine this discriminatory policy. Yet as solicitor general, Kagan personally authorized numerous court filings defending "don't ask, don't tell" and other anti-gay laws such as the Defense of Marriage Act. The reason: as solicitor general, Kagan has a legal duty to defend the laws Congress has enacted, even if she passionately disagrees with them. And Kagan has not wavered in acting exactly as the law requires her to act.

Kagan will be no less faithful to the law when she slips on a black robe. Her experience teaches her that there are severe consequences when judges substitute their own values for the law's judgment; and her record makes clear that she will faithfully apply laws cherished by progressives and conservatives alike.

In other words, she will be a welcome change from conservative jurists convinced that justice should be dealt with a thumb on the scale.

Ian Millhiser is a constitutional attorney and a policy analyst with the Center for American Progress.